Social media content either produced by a corporation or an individual – or posted/sent via a social media platform – can impact a multitude of legal concerns: regulatory, enforcement agency, product liability, copyright, trademark, intellectual property, trade secret, wage and labor, the list goes on.
Even still, as lawyers can be a bit (ahem) reluctant to follow new technologies, there are a number of myths and fallacies about social media that are prevalent today.
1. It is going away. We won’t have to worry about it.
Sort of like the Internet and e-mail, it’s a fad, right? Hard to find people who will say it seriously, but I’ve heard more than one lawyer wish it were true, and more than one act like it is.
This is not a legal strategy, this is wishful thinking. If you still believe this, then you have got some bigger issues to deal with. Like reality.
2. We can stop our client from using it and/or our client will have nothing to do with social media.
In the vast majority of companies, the marketing department will win this fight. Period. Because it is an existential battle for marketing departments. Those departments would cease to exist if prohibited from using social media. I heard an anecdote about the General Counsel of a pharmaceutical company announcing that there would be a Facebook page “over my dead body” – approximately a year before the company’s first official Facebook page was launched.
Even in the most restrictive of circumstances, those companies which are highly regulated or litigated , the legal departments may be able to stem the tide temporarily, but just that, temporarily.
Already, most of these industries – Pharma, Energy, Banking – all have launched significant social media programs. So let’s look at an outlier of a company specifically prohibited from advertising their product. Here is a Facebook “interest” page on Camel Lights. As of the day of this post, there were almost 2,000 “Likes”. Notice there are no disclaimers or health warnings.
Why should there be. After all, it’s not an RJR sponsored page. They have no control over it, it is not a property they sponsor. But clearly, it’s an issue the legal department would have to,at a minimum, look at.